B.C. Supreme Court rules polygamy ban is constitutional, but flawed

Polygamy remains a crime in Canada, B.C. Supreme Court Chief Justice Robert Bauman ruled Wednesday. In his ruling, Bauman said the law violates the religious freedom of fundamentalist Mormons, but the harm against women and children outweighs that concern

B.C. Supreme Court Chief Justice Robert Bauman rules that the ban against polygamy is constitutional The Judge says the law violates the religious freedom of fundamentalist Mormons, but the harm against women and children outweighs that concern. In legal language, this is called “passing the Oakes test.” However, Justice Bauman rules that 12- to 18-year-olds who violate the law should not be prosecuted (as this prosecution would outweigh the harm of the polygamy) and that Parliament should re-write the law to reflect that. The ruling may still be appealed.

VANCOUVER — Polygamy remains a crime in Canada, B.C. Supreme Court Chief Justice Robert Bauman ruled Wednesday. In his ruling, Bauman said the law violates the religious freedom of fundamentalist Mormons, but the harm against women and children outweighs that concern.

Bauman reserved judgment on the landmark case in April, after hearing 42 days of legal arguments during the unusual reference case, with opposing parties arguing the right to religious freedom and the risk of harm polygamy poses to women and children.

The constitutional issue was referred to the B.C. Supreme Court by the provincial government after polygamy charges laid against Bountiful, B.C., Mormon leaders Winston Blackmore and James Oler were stayed in 2009.

While the judge said the current law is constitutional, he raised concerns about the prosecution of anyone between the ages of 12 and 18 being prosecuted for being in a polygamous relationship. He suggested that Parliament look at rewriting the law to exclude the word “everyone” and make it specific to prosecuting adults..

“I think the concern of the judge is the desire to protect children substantively — so if they are prosecuted, and go to jail, the law would harm the child rather than help,” said Monique Pongracic-Speier, a lawyer representing the B.C. Civil Liberties Association, a group that wants section 293 declared unconstitutional.

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Rather, she said, the judge is suggesting that the adult in the relationship be prosecuted but not any minors involved in the illegal relationships..

However, she felt that by even prosecuting the adults, that would harm the offspring of these polygamous relationships.

The B.C. Civil Liberties believes that the law is unconstitution because it violates an individual’s right to liberty and privacy.

Bountiful residents follow the Fundamentalist Church of Jesus Christ of Latter-day Saints, or FLDS. Polygamy is practised as a tenet of the faith but the mainstream Mormon church renounced multiple marriages more than 100 years ago.

A judge stayed the charges after concluding the selective way the province chose the prosecutors violated the men’s rights, prompting the government to launch a constitutional reference case.

During the case, the governments of Canada and B.C. presented evidence of polygamy’s harms, arguing that the practice puts women and children at risk, thereby justifying limiting religious freedom as well as freedoms of association and expression.

The government positions were supported by anti-polygamy activists, advocates for women’s and children’s rights and the Christian Legal Fellowship.

The court appointed an “amicus curiae,” a Latin term meaning friend of the court, to argue in favour of striking down the polygamy law, which has made it illegal since 1892 to have more than one spouse.

Those favouring striking down the law included the FLDS, polyamorists and civil libertarians, who argued that Section 293 of the Criminal Code is overly broad, criminalizing consenting adults whose conjugal relationships are benign and even beneficial for all involved.

“By intruding into adults’ decisions about the form of conjugal relationship that best meets their personal needs and aspirations, the law overextends the reach of the criminal law into individuals’ private lives, intruding into their most private relationships,” the B.C. Civil Liberties Association argued.

The B.C. attorney general’s lawyers also filed a list of 31 under-aged girls with birthdates and marriage dates, along with the names of the parents and relatives who trafficked them between Canada and the United States to marry FLDS elders.

On the central issue in the case — whether the practice of polygamy involves the potential for abuse of women and children in polygamous communities — the court heard evidence from individuals who have had both positive and negative experiences with polygamous relationships.

The provincial government refereed the case to the court to answer two questions: Is section 293 of the Criminal Code of Canada consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent? What are the necessary elements of the offence in section 293 of the Criminal Code of Canada? Without limiting this question, does section 293 require that the polygamy or conjugal union in question involved a minor, or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence?

In Canada, there has been a legacy of failed legal attempts to deal with the issue, utilizing either the anti-polygamy law, Section 293, which carries a five-year term, the Human Rights process, or, most recently, a section of the Criminal Code prohibiting adults from having sex with minors when the adult is in a position of authority

In 2007, after four Crown attorneys rejected a recommendation to lay criminal charges against the polygamous families of Bountiful, then-B.C.-attorney-general Wally Oppal asked Vancouver lawyer Richard Peck to make an independent assessment of Bountiful and also whether section 293 would fail a challenge on its constitutionality.

Dissatisfied with the outcome of Mr. Peck’s finding, he then asked Vancouver lawyer Leonard Doust to look at how to best proceed. Mr. Doust also suggested refering section 293 of the Criminal Code to the courts to test its constitutionality, rather than prosecuting individuals first.

In 2009, Winston Blackmore was charged in 2009 with one count of practising polygamy, as was James Oler, who leads the other faction inside Bountiful. But a judge threw out the charges, leading to the reference to the B.C. Supreme Court.

Postmedia, with files from Charles Lewis

Timeline: Polygamy in British Columbia

1843 — Officially recorded date of Mormonism’s founder, Joseph Smith, having a revelation about celestial or polygamous marriages.

1862 — U.S. enacts law prohibiting polygamy.

1888 — Charles O. Card, who is wanted for polygamy in the United States, goes with two others to Prime Minister Sir John A. Macdonald asking for special dispensation to bring their plural wives and other families to Canada. Macdonald says no and the next year brings in legislation outlawing polygamy.

1890 — Wilford Woodruff, the head of the Church of Jesus Christ of Latter-day Saints, renounces the practice of polygamy.

1946 — Winston Blackmore’s uncle, Harold Blackmore, breaks away from the mainstream Mormon church over the issue of polygamy. He buys property outside Creston, B.C., and establishes the community that will come to be called Bountiful. Blackmore is affiliated with other polygamists — fundamentalist Mormons — living along the Utah-Arizona border in a community called Short Creek.

October 1991 — RCMP conclude a 13-month investigation and recommend charges be laid against Winston Blackmore and Dalmon Oler for practising polygamy.

June 1992 — B.C. attorney general Colin Gabelman decides not to lay charges after getting legal opinions that the polygamy section of the Criminal Code would not withstand a charter challenge.

2002 — Winston Blackmore is excommunicated by Warren Jeffs, who succeeded his father, Rulon, as the prophet of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS). Jim Oler is appointed bishop. Jeffs is the spiritual leader to some 10,000 followers in the U.S. as well as the residents of Bountiful, who broke away from the mainstream church over the polygamy issue.

Spring 2004 — Debbie Palmer, third wife of Winston Blackmore’s father, Ray, and several others, files a complaint with the B.C. Human Rights Tribunal. By the time Palmer left Bountiful in 1988, she had eight children and three different husbands. She was married to her first husband when she was 15; he was 57 and already had five wives. He was also her step-grandfather. Palmer took all of her children when she left Bountiful.

June 14, 2004 — After receiving a letter from someone in Bountiful alleging abuse, B.C. attorney general Geoff Plant asks RCMP to investigate.

April 2005 — Winston Blackmore holds a polygamy summit in Creston, B.C. At the summit, he says that his son married a 14-year-old. He also admits that he has married “several under-aged girls.”

Summer 2005 — Wally Oppal is appointed attorney general of British Columbia and describes the situation in Bountiful as “intolerable.”

Dec. 8, 2006 — Winston Blackmore goes on CNN with Larry King and admits to being a polygamist and having ‘married’ several girls who were 16 and one who was 15.

Aug. 1, 2007 — Special prosecutor Richard Peck recommends to Oppal that rather than laying charges, the province should refer the polygamy law to the B.C. Court of Appeal to determine whether it is constitutionally sound. Oppal disagrees.

Nov. 22, 2010 — A reference case to determine the constitutionality of Section 293 of the Criminal Code of Canada, which outlaws polygamy, begins before Chief Justice Robert Bauman of the B.C. Supreme Court.

June 3, 2011 — Judge Campbell Miller rules that Winston Blackmore will get no ban on publication of evidence and witness testimony, no order restricting the use of evidence and witness testimony in any possible future criminal prosecution under Canada’s polygamy law and, no further delay in the tax trial.

Nov. 23, 2011 — Justice Bauman, after hearing 42 days of legal arguments with opposing parties arguing the right to religious freedom and the risk of harm polygamy poses to women and children, rules to uphold Canada’s polygamy laws as constitutional, but says they cannot be used to prosecute children aged 12 to 17.

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